In May this year, the Turnbull Government announced the first ever comprehensive review of Australia’s family law system and an $80 million injection of funding to frontline family law and family violence services.

Last week, Attorney-General George Brandis commissioned the Australian Law Reform Commission (ALRC) to undertake the first comprehensive review of the family law system since its the Family Law Act commencement in 1976 which he considers to be “necessary and long overdue.”

The review will be led by Professor Helen Rhoades from Melbourne Law School in response to the evolving needs of Australian families since the 1970s. It will focus on crucial areas of importance to Australian families and ensure that the family law system prioritises the best interests of children, addresses family violence and child abuse, supports families (including those with complex needs) to resolve disputes quickly and safely, while also minimising the financial burden.

Terms of reference

The ALRC received the terms of reference from Attorney-General George Brandis on 27 September 2017:

there has not been a comprehensive review of the Family Law Act 1975 (Cth) since its commencement in 1976

the diversity of family structures in contemporary Australia

the importance of ensuring the Act meets the contemporary needs of families and individuals who need to use the family law system

the importance of affording dignity and privacy to separating families

the importance of public understanding and confidence in the family law system

the desirability of encouraging the resolution of family disputes at the earliest opportunity and in the least costly and harmful manner

the paramount importance of protecting the needs of the children of separating families

the pressures, particularly financial pressures, on courts exercising family law jurisdiction

the jurisdictional overlap of the federal family law system and the state and territory child protection systems and the desirability of ensuring that, so far as is possible, children’s matters arising from family separation are dealt with in the same proceedings

the desirability of finality in the resolution of family disputes and the need to ensure compliance with family law orders and outcomes

the benefits of engaging appropriately skilled professionals in the family law system.

Scope of the reference:

The ALRC should have regard to:

the family law system, including on surrogacy, family violence, access to justice, child protection and child support

interactions between the Commonwealth family law system and other fields, including family law services, the state and territory domestic and family violence, child protection, and child support systems, including the ALRC Family Violence Report 114.

The ALRC will consider what, if any, legislative amendments should be made to the family law system, the Family Law Act 1975 and other related legislation.

It is expected that the ALRC will conduct consultations with the community, practitioners and experts in family law and family dispute resolution, family relationship and social support services, legal services and health sectors, as well as interested members of the community.

Among the terms of reference, the ALRC has been asked to address whether the family law system is too adversarial in nature, given the high conflict nature of marriage breakups and custody disputes. The alternative, perhaps, is a greater emphasis on mediation.

In an interview with ABC Breakfast, Attorney-General George Brandis said:

It’s always better that disputes be resolved by mediation rather than by litigation, particularly though when they concern intimate relationships, people at a fraught and despairing time of their lives, and of course particularly where the interests of children are concerned.”

President of the Law Council of Australia, Fiona McLeod SC, strongly welcomes the review but cautioned that meaningful and lasting reform will require significant court and legal assistance funding:

The Law Council has long been warning that our family law system is in crisis, primarily due to a lack of funding and resourcing,” Ms McLeod said.

For that reason we welcome this review and especially the selection of the ALRC to oversee it. It is also very pleasing to see the ‘pressures (including, in particular, financial pressures)’ on the courts included in the terms of reference.

While the number and complexity of family law cases has increased sharply in recent years, resourcing has not adequately increased to compensate.

Those on the frontline of our family law system have been sounding the alarms for years. So ‘the appropriate, early and cost-effective resolution of all family law disputes’ is a very appropriate focus of recommendations in this review.

The current lack of resources has meant that families facing the most serious family law issues are waiting for up to three years or more before a final trial.

The Law Council looks forward to contributing to this review, however we note that any significant recommendations for reform will not be able to implemented without corresponding funding.

Of course, properly funding the court system also means properly funding legal assistance services, which are still chronically underfunded according to the Productivity Commission. For this reason we are pleased to see that this review’s scope also includes instructions to consider existing reports relevant to ‘access to justice’,” Ms McLeod said.

We are heartened to see the terms of reference reflect serious issues we see in our work at the family courts – including safety concerns, family violence and protection of vulnerable witnesses. We hope that cost-cuttings do not dominate the review, but rather that access to justice and the safety of women and children in the family law system are prioritised.”

Legal Notice

The contents of this publication, current at the date of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.

About Chantal El Khoury

Born and raised in Melbourne, Chantal is a graduate law student who has interests in social justice and commercial law, having also completed a Bachelor of Commerce. In her free time, she loves to create decadent desserts, sip on champagne and go on long road trips.

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